[Federal Register: October 23, 2008 (Volume 73, Number 206)]
[Rules and Regulations]
[Page 63058-63060]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc08-2]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0104]
Privacy Act of 1974: Implementation of Exemptions; Immigration
and Customs Enforcement (ICE) General Counsel Electronic Management
System (GEMS)
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a new system of records
entitled the ``Immigration and Customs Enforcement General Counsel
Electronic Management System'' (GEMS) from certain provisions of the
Privacy Act. Specifically, the Department exempts portions of the GEMS
system from one or more provisions of the Privacy Act because of
criminal, civil, and administrative enforcement requirements.
DATES: Effective Date: This final rule is effective October 23, 2008.
FOR FURTHER INFORMATION CONTACT: Lyn Rahilly, Privacy Officer, U.S.
Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC
20536, e-mail: ICEPrivacy@dhs.gov, or Hugo Teufel III (703-235-0780),
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 71 FR 16519, April 3,
2006, proposing to exempt portions of the system of records from one or
more provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. The system of records is the
ICE General Counsel Electronic Management System (GEMS). The GEMS
system of records notice (SORN) was published in the Federal Register,
71 FR 16326, March 31, 2006. Comments were invited on both the proposed
rule and SORN. No comments were received from the public regarding
either the SORN or the proposed rule. Therefore, no changes have been
made to the rule or the SORN, and DHS is implementing the final rule as
published.
DHS is claiming exemption from certain requirements of the Privacy
Act
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for GEMS because the system will consist of information that is created
or acquired and used by ICE attorneys working on the preparation and
presentation of cases for a court or adjudicative body before which ICE
or DHS is authorized or required to appear. Attorneys for the
Department of Justice will also be able to access the system if they
have a need for the information in the performance of their official
duties.
ICE attorneys work closely with investigators throughout the
process of adjudicating immigration cases. ICE attorneys must have
access to investigative documents and related materials in order to
form their decisions about how to handle particular cases.
Additionally, ICE attorneys create attorney work product associated
with immigration proceedings. The GEMS system will facilitate the
collection and maintenance of materials used by ICE attorneys in
immigration adjudications. It will supplement and ultimately replace
the current attorney work product paper files that are primarily stored
and managed in the hardcopy alien file commonly known as the ``A-
file.''
In this final rule, DHS is exempting this system, in part, from
certain provisions of the Privacy Act and adding that exemption to
Appendix C to Part 5, DHS Systems of Records.
Pursuant to the requirements of the Regulatory Flexibility Act, 5
U.S.C. 601-612, DHS certifies that these regulations will not
significantly affect a substantial number of small entities. The final
rule imposes no duties or obligations on small entities. Further, in
accordance with the provisions of the Paperwork Reduction Act of 1995,
44 U.S.C. 3501, DHS has determined that this final rule would not
impose new record keeping, application, reporting, or other types of
information collection requirements.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must undergo several analyses. In
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
This rule is not a significant regulatory action under Executive
Order 12866, ``Regulatory Planning and Review'' (as amended).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB). Nevertheless, DHS has reviewed this
rulemaking, and concluded that there will not be any significant
economic impact.
2. Regulatory Flexibility Act Assessment
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will
not have a significant impact on a substantial number of small
entities. The rule would impose no duties or obligations on small
entities. Further, the exemptions to the Privacy Act apply to
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
This rulemaking will not constitute a barrier to international
trade. The exemptions relate to investigations of violations of civil
or criminal laws and, therefore, do not create any new costs or
barriers to trade.
4. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. This rulemaking will not impose an
unfunded mandate on State, local, or tribal governments, or on the
private sector.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. DHS has determined
that there are no current or new information collection requirements
associated with this rule.
C. Executive Order 13132, Federalism
This action will not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and therefore will not have federalism
implications.
D. Environmental Analysis
DHS has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
E. Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory
action under the provisions of the EPCA.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
0
For the reasons stated in the preamble, DHS amends Chapter I of Title
6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
1. The authority citation for part 5 continues to read as follows:
Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et
seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
0
2. At the end of Appendix C to Part 5, add the following new paragraph
11 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
11. The General Counsel Electronic Management System (GEMS)
consists of records and information created or collected by
attorneys for U.S. Immigration and Customs Enforcement, which will
be used in the preparation and presentation of cases before a court
or other adjudicative body. ICE attorneys work closely with ICE law
enforcement personnel throughout the process of adjudicating
immigration cases. GEMS allows ICE attorneys to store all the
materials pertaining to immigration adjudications, including
documents related to investigations, case notes and other hearing
related information, and briefs and memoranda of law related to
cases. Having this information in one system should not only
facilitate the work of the ICE attorneys involved in the particular
case, but also will provide a legal resource for other attorneys who
are adjudicating similar cases. The system will also provide
management capabilities for tracking time and effort expended in the
preparation and presentation of cases. Pursuant to exemptions 5
U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are
exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f)(2) through (5);
and (g). Pursuant to 5 U.S.C. 552a (k)(1) and (k)(2), this system is
exempt from the following provisions of the Privacy Act, subject to
the limitations set forth in those subsections: 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). Exemptions from
these particular subsections are justified, on a case-by-case basis
to be determined at the time a request is made, for the following
reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the
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subject of an investigation of an actual or potential criminal,
civil, or regulatory violation, to the existence of the
investigation, which in some cases may be classified, and reveal
investigative interest on the part of DHS or ICE. Disclosure of the
accounting would therefore present a serious impediment to law
enforcement efforts and/or efforts to preserve national security.
Disclosure of the accounting would also permit the individual who is
the subject of a record to impede the investigation, tamper with
witnesses or evidence, and avoid detection or apprehension, which
would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could inform the
subject of an investigation pertaining to an immigration matter,
which in some cases may be classified, and prematurely reveal
investigative interest on the part of DHS or another agency. Access
to the records could permit the individual who is the subject of a
record to impede the investigation, tamper with witnesses or
evidence, and avoid detection or apprehension. Amendment of the
records could interfere with ongoing investigations and law
enforcement activities and would impose an impossible administrative
burden by requiring investigations to be continuously
reinvestigated. In addition, permitting access and amendment to such
information could disclose security-sensitive information that could
be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal immigration law, the accuracy of information
obtained or introduced occasionally may be unclear or the
information may not be strictly relevant or necessary to a specific
investigation. In the interests of effective law enforcement and for
the protection of national security, it is appropriate to retain all
information that may aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject of the
nature or existence of an investigation, which could cause
interference with the investigation, a related inquiry or other law
enforcement activities, some of which may be classified.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise the existence of a confidential
investigation or reveal the identity of witnesses or confidential
informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements),
(f) (Agency Rules), and (g) (Civil Remedies) because portions of
this system are exempt from the individual access provisions of
subsection (d).
(g) From subsection (e)(5) (Collection of Information) because
in the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with ICE's ability to obtain, serve, and
issue subpoenas, warrants and other law enforcement mechanisms that
may be filed under seal, and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-24996 Filed 10-22-08; 8:45 am]
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